Iran: The Persian Puzzle And its Containment

At the time of writing, the US President, Donald Trump, has cancelled US military plans for strikes on Iran, in response to the Iranian downing of a US drone and attacks on merchant shipping. On any view, the Iranian regime has been behaving badly. There are good arguments for and against striking Iran. There are very few if any good arguments for a policy of passivity. There is even less reason for viewing this as a problem of Trump or Obama, rather than simply as the enduring "Persian Puzzle".

This Iranian challenge has, since the fall of the Shah in February 1979, been a problem for every US President since Jimmy Carter. It was not always so. Prior to 1979, the Shia monarchical and unified Iran and its 'white revolution' had been a model of how a modernising state could also keep its Muslim faith – esp Shiism which in Iran has historically been accommodating of Jews and Christians. The last Shah was not the best of rulers, to be sure, but he was a good ally of the West, and of Israel, and the Shah also had created an Islamic monarchy that was capable of developing into the constitutional monarchy that had been the object of Iranian reformers almost a century prior. The Iran under the Shah was considered the ‘gendarme of the Middle East’. Instead, the Kerenskyite combination of liberals and Islamists protesting from 1977-1979 ensured that the liberals could do enough to bring down the Shah and not enough to prevent the rise of the Mullahs. The downfall of the Shah and his replacement in 1979 by Khomeini’s Islamic republic – and the Mullahs’ rule of Iran - marked more than a regime change but a civilizational turning point. Since 1979, and especially since the Iran hostage crisis of 1979-1981 and the Beirut bombings of 1983, the Islamic Republic of Iran has been a pariah state, deservedly so.

There are, thus, good reasons for the West to take a confrontational policy towards Iran.

Firstly, as a matter of realpolitik, Iran is the adversarial regional hegemon of a crucial part of Eurasia. It is impossible to fully grasp the historical centrality of what is now Iran without understanding Iran is in the heartland of what Sir Halford Mackinder called the ‘world island’.

Iran is approximately 80 million people occupying the most historically vital land routes to and from Europe and Asia, and is a provider (like Russia) of vital air travel corridors. An aggressive Iran pursuing a policy to deny the West access to and influence in this critical part of the world cannot go unresponded to, at least not without the running of grave risk.

Moreover, as I have written elsewhere some years ago, Iran is the natural hegemon of a region that spans from Kabul to Kobane. Iran has a military history and military culture that is at least 3000 years old, and a commensurate antiquity of brain. Iran is, as I am fond of saying, a "real country", and it also has, despite its proliferation of ethnicities and religions, in addition to its Persian Shia core, a strong sense of Iranian nationhood that all Iranians share, and a capacity to mobilise a population for war - and then endure war and struggle for a significant period of time. As enduring strategic cultures go, Iran can be compared to Russia and China, with geography and history determining Iran's responses no less than do seapower realities fashion the responses of the British imperial nations and the United States. The Iranian military infrastructure includes a very large and self-sufficient Iranian armaments industry, built out of necessity after the Shah fell, but which has only gone ahead in leaps and bounds, such that Iran's capacity to sustain itself in war, and respond asymmetrically cannot be taken lightly. During the Iran-Iraq War, Iran had the support of few countries, and its most reliable arms and ammunition suppliers were itself, North Korea, and, when realpolitik demanded, Israel. Iran's own military resources are supplemented by Russian weaponry. Iran's own military posture and its willingness to both support militant proxies and both Shia and Sunni jihadis, as well as use Greater Khorasan to provide strategic depth, is probably one of the most important and yet under-reported stories of our time. Moreover, viewed from Tehran, the Persian Gulf is called thus for very good and well-founded historical reasons.

Secondly, Iran is the world’s major state sponsor of terrorism. Iran’s Islamic Revolutionary Guard Corps-Qods Force (IRGC-QF) are a veritable ‘best practice leader’ in sponsoring terrorism, from the training and ‘mentoring’ of terrorists to their arming and equipping over years. Where some terrorist organisations struggle to effect mass casualty attacks, Iran’s proxies have veritable campaign plans. Iran has not only helped create Hezbollah in Lebanon, which has developed, also, into its own terrorism for export business, but Iran has also assisted Sunni jihadi groups as well, even without exercising operational control, such as Hamas and Islamic Jihad. The ability of senior Al Qaeda fighters to move permissively between Afghanistan and Iraq/Syria, ie through Iran and its near abroad, cannot be by accident. The Iranian regime, also, has had a demonstrated capacity to engage in murder and terrorism, far from home, as former senior officials of the Shah’s regime found out to their peril.

Thirdly, Iran has sought and seeks weapons of mass destruction, especially a nuclear capability, and Iran has been a close ally of North Korea for almost 40 years. It is impossible to discuss North Korea sensibly without any discussion of Iran’s role as a funder, customer, and energy supplier, of North Korea. It is also impossible to discuss the threat posed by an Iranian hunger for a nuclear weapon without discussing Tehran’s use of North Korea as a weapons laboratory, and that any capabilities possessed by North Korea will be readily assimilated by Iran. One does not have to be a neoconservative to appreciate there is a real ‘axis of evil’ between Tehran and Pyongyang. The North Koreans, too, are no strangers to supporting terrorism. On these grounds alone, planning for a strong military response to Iranian misconduct should always be considered, reviewed, and updated.

Fourthly, the Strait of Hormuz is a vital waterway through which approximately 21 million barrels of oil per day is shipped, composing roughly 21% of global petroleum, especially for the benefit of Asia and Europe. To be sure, this raises the questions as to why the Chinese and Europeans less alarmed by Iranian behaviour than the US. There is an assumption that the US (and Allies) will police the Gulf, which, to the degree it means a reluctance to challenge the Persian Gulf as an ‘allied lake’, then this is no bad thing. A more dangerous Strait of Hormuz only guarantees new methods of delivery, including pipelines avoiding the Hormuz strait problem altogether, will be found.

Fifthly, per the above, the West, especially the Anglophone states, have enduring security obligations to their Arab allies, all of whom worry about the hegemonic ambitions of the Iranian regime. Since at least the fall of the Ottomans, there has been a successive as well as complementary understanding that the British and the Americans would help guarantee the security to the Arabian peninsular in return for conferring rights on the British and the Americans in respect of resource extraction and the steady flow of oil from the Persian Gulf. In respect of Jordan and Egypt, this Anglo-American security understanding has included significant local military support in return for Arab support against Saddam’s Iraq and to help secure the State of Israel. The Arab allies have been reliable partners on a range of issues since at least World War II. It is difficult, in particular, to overstate the support provided by Saudi Arabia to the West during the Cold War, not just in the period concerning the Shah’s fall, but also in helping facilitate the sort of diplomacy that is not officially acknowledged. The fear that the Iranian regime’s capabilities and demonstrated expeditionary capacity generate cannot be exaggerated, particularly in an era when Qatar is, also, alienating its former allies. The view from the Gulf Arab states of their security position, with Iran and its proxies forming an arc from Damascus through Baghdad, through the Gulf, south to Yemen, demonstrates a concerted Iranian campaign to encircle, strategically, the West's closest Gulf Arab allies. Moreover, in a very real sense, the West's alliance with the Gulf Arabs is the historic penance due to the sin of letting the Shah fall in 1978-1979. The Shah of Iran was the West's closest ally and was a vital support against the Soviets to the north, and a check on Arab nationalism to the west, and a monitor of events in Afghanistan to the east. When the Shah of Iran fell, so, too, did much of the post-WWII security architecture on which much of Western security relied. Given the importance of the region and of the Gulf itself, it would have been folly of the highest order if Western powers had not more closely engaged and strengthened, as well as militarily fortified, the friendly Gulf Arabs. That the Gulf Arabs may not as yet be 'Scandinavia with camels' is neither here nor there - geopolitics does not care about your feelings.

However, there are also very good reasons for the West, led by the US, to, for now, anyway, step back and not escalate the tense situation.

The primary consideration, which goes entirely unmentioned by the, “Whither the liberal international order?” crowd bloviating from their cable TV green rooms and think-tanks - but which consideration is not missed by anyone with any sort of military intelligence and planning background – is that there are still almost 20,000 Allied troops in neighbouring Afghanistan. Any attack by the US on Iran would, almost certainly, see Iranian-backed attacks on Allied forces in Afghanistan only increase. Afghanistan, especially the once Persian areas of western Afghanistan such as Herat, are not just neighbouring Iran but are seen by Iran, whether under the Shah or under the Mullahs, as security frontiers. There is almost no way that a strike on Iran would not endanger Allied troops in Afghanistan. Moreover, there would be even greater threats to the supply of Allied troops, already positioned at some distance from closely allies’ territories, over the coming Afghan winter, as well as endangerment of any future extraction of the Allied position.

The ongoing vulnerability of the Allied position in Afghanistan makes clear, also, the illogic of not just attacking Iran but, also, poking the adjacent and hyper-aggressive Russian bear, to any serious person trying to appreciate, militarily, the current situation. All that the Afghanistan War has managed in almost 20 years to achieve, at considerable cost in precious lives and national treasures, is to position a permanently exposed Allied expeditionary force close to Iran and Russia, in addition to its regular combat with the Taliban and like enemies. It is hard to conceive of a more strategically reckless misallocation of precious military resources than the Afghan War, as I have argued here.

A secondary, if more sublime, consideration that militates against striking Iran is that a strike sufficient to have any effect on the Iranian regime would likely bond average Iranians to an unpopular Mullahs’ regime. It would provide a ready Western scapegoat for the Iranian Regime’s corruption, brutality, and its inability to supply its citizens’ most basic needs. The Iranian people are a brilliant people and are now often protesting the regime. Their great King, Cyrus, is central to the Biblical story of the Jews’ return to Zion in Ezra and Nehemiah. The ancient history of Greece, Rome, and Byzantium, as well as the history of the Ottomans and the Russians, is filled with their wars and diplomacy with the Persians. This history is a testimony not just to the historic geopolitical importance of Iran’s territory but also to the dynamism and will of the Persian and Iranian peoples across millennia. There are ample reasons given by Persian and Iranian history for believing that the Mullahs regime will fall, perhaps by a popular revolt building on the 2009 protests, perhaps by a successful military coup. The West should do its best to contain the Iranian regime’s worst external manifestations, especially that of its sponsorship of terrorism and the threat to both Persian and Omani Gulfs. But, in respect of the internal dynamics of Iran, the West should do as little as it possibly can to make everyday Iranians feel any sort of loyalty to the Mullahs’ regime, of the kind that a military assault on Iran would inevitably provoke. Instead, consistent with the West’s ongoing containment of an aggressive Iran, measures should be taken to aid the Iranian civil society and, especially, those Iranians who seek a future of constitutional government, under the rule of law, and honouring the finest traditions of Iran as a pluralist and prosperous nation.

All in all, there are no really good options in 2019 with respect to Iran. It is an ancient civilisation, it is a hegemonic power, it is a sponsor of terrorism, it is a maker of bad into much worse situations. Iran constitutes a challenge that prudence dictates must be taken very seriously. At the same time, Iran is simply too large for a comprehensive military response short of a full-scale war – and on any view, we are not yet at that juncture.

As I often counsel here, and elsewhere, it is always good to see things as they are and to keep even the gravest of matters in perspective. Iran has been subject to severe sanctions and these will likely get only worse as a result of the regime’s behaviour. The living standards of the average Iranian are poor and getting worse. The regime is already paying a high price for its transgressions in terms of isolation and the impoverishment of its people. For now, to borrow from the great American diplomat George Kennan, in the context of the now defunct Soviet Union, the main element of the West’s policy towards Iran must be that of a “long-term patient but firm and vigilant containment of [Iran’s aggressive] tendencies.” Such a policy has yielded benefits in the past and will do so in the future. Iran is too great a nation to continue, for long, under the rule of such a squalid regime, and the West should do all it can to help promote, peacefully, the possibility of an alternative Iranian future, which builds on its long tradition, especially in Shiism, of the importance of law, and a historic Iranian thirst for constitutional government.

For now, the West should prepare for any eventuality, and rattle the sabre, if necessary and productive, but always be under no illusion that drawing it for the purposes of military action will not see it soon recovered to its scabbard. The wisest course is to keep our powder dry while maintaining the closest watch on the Iranian regime while, also, trusting the Iranian people, and doing all we can to encourage a peaceful and lasting 'regime change'. The Iranians, after all of the suffering of the last 40 years, certainly deserve no less.

National Security: The case for the Australian Government

Yesterday, the Australian Federal Police executed search warrants against the Sydney headquarters of the Australian Broadcasting Corporation (Australia’s equivalent of the BBC and Canada’s CBC, and, to some degree, the US’ NPR and PBS) in Ultimo, in inner-city Sydney. You can read all about it here and here, and practically anywhere in Australian news.

I am not briefed in or around the matter and, moreover, as I do practice and give opinions in constitutional, public and national security law, and as I teach constitutional law, I can, in the tradition of the independent Bar, offer my own observations on the law and the process, if not the facts of this particular case (the usual presumptions operate etc).

Thus, I herewith endeavour to provide some light on the law at a time when others, who should know better, are providing so much heat, especially in respect of matters that may come before a court.

But, first, I turn to two of the key matters.

Firstly, I note that these search warrants have been executed during the processes of the criminal trial of a Mr David McBride. Mr McBride is, at all times, as is any one of us, entitled to the presumption of innocence and to a fair trial. The Crown/Government bears all of the onuses here.

Secondly, my view is that the ABC and the media, generally, can and should do all it can to legitimately challenge what actions it believes have been and/or are a violation of its rights. Australia is a robust constitutional state and we all benefit from a Government that is scrutinised, relentlessly and, we hope, in an unbiased manner, by a sceptical media. While I think a sense of perspective should be kept on these events, at the same time, we all benefit from a media that is curious and critical. I am not aware of any serious person who would doubt the need for a vibrant and inquisitive media.

As to the search warrants, which are in serial form, it is fair to say they speak for themselves. Clearly, the search is for materials relating to the Australian Defence Force (ADF), and military operations, including special forces’ activities, and related national security information. This is material that is, obviously, of the most extraordinary sensitivity for a national government. It may relate to past, present, or contemplated, wartime and security operations, and thus potentially include identifiers of Australian military, intelligence, and security services, personnel. It may also include materials concerning Defence’s own internal investigations, which may traverse an additional range of issues, including ones that may go to the fairness or otherwise of ongoing ADF probes. The list of endless complications posed by national security information, especially military information, being ‘leaked’ to the media are significant – and this is why ‘leaks’ are a criminal offence with those convicted of ‘leaking’ facing significant penalties.

One of the requirements of any form of search order, especially one for the Police, is that it describes with specificity what is being ‘searched’ for by the authority. One should add that this search was conducted peacefully – the AFP officers and agents even signed in at the ABC’s reception and then engaged in extended discussions with the ABC’s own lawyers. This was hardly the ‘afternoon of the long hard drives’. This was most certainly not any sort of "raid".

To the above, I would add the following by way of enlightening discussions on the matter of how and why the Government has a legitimate interest to defend, especially amid all the criticisms of the AFP that are now being made. In order, they are:

[1] Australia resulted from National Security concerns: The Australian union brought about by the Federation movement, the "one indissoluble Federal Commonwealth under the Crown" that commenced on 01 January 1901, resulted from the Australian desire for security - not the desire for liberty. One of the primary drivers of Australian Federation in the late 19th century was the need for the six sparsely populated British colonies to secure the enormous Australian continent and its approaches (in the late 19th century, the Australian colonists considered themselves threatened by, inter alia, Russian, German, and French, ambitions in the region). As the High Court, whose Great War courts were populated by that Australian founding generation and whose cases supply much of our law to this day, noted in 1918, “It is a matter of common knowledge that the necessity of a single authority for the defence of Australia was one of the urgent, perhaps the most urgent, of all the needs for the establishment of the Commonwealth.” The Constitution, and the High Court interpreting it, has always given significant deference, especially in time of war and crisis, to the national government and its responsibility for national security and the ‘defence of the realm’. These separate observations by Justice Isaacs – who would in due course leave the High Court to become Governor-General and thus Commander-in-Chief of the armed forces – are worth quoting at length as it gives an idea of how broad the deference to the Government is in Australian law, especially in a time of war and crisis, notwithstanding that 2019 is not 1916:

“Defence includes every act which in the opinion of the proper authority is conducive to the public security. Those who are entrusted with the ultimate power of guarding the national safety are not bound to subordinate that consideration to any other.”

“A war imperilling our very existence, involving not the internal development of progress, but the array of the whole community in mortal combat with the common enemy, is a fact of such transcendent and dominating character as to take precedence of every other fact of life. It is the ultima ratio of the nation. The defence power then has gone beyond the stage of preparation; and passing into action becomes the pivot of the Constitution, because it is the bulwark of the State. Its limits then are bounded only by the requirements of self-preservation. …. The best protection all the rights and powers so jealously, and in ordinary times so justifiably, defended can have, so far as Australia is concerned, is the very Commonwealth power that is now sought to be limited. The Constitution cannot be so construed as to contemplate its own destruction or, what amounts to the same thing, to cripple by checks and balances the ultimate power which is created for the undeniable purpose of preserving at all hazards and by all available means the inviolability of the Commonwealth and of the several States.”

The more recent 2007 case of Thomas v Mowbray affirmed the breadth of the Government applying laws made under the Defence power’s expansive reach, including control orders as against a person suspected – but not convicted – of having, essentially, skills useful to terrorism and sympathies with terrorists. There, the majority of the High Court found the control orders valid. Noteworthy was what Justices Gummow and Crennan said about the effect of the Australian Constitution on ideas of governmental duties to their citizens: “The obverse of that obedience and allegiance was the sovereign's obligation of protection. This notion of a compact sustaining the body politic cannot be weakened and must be strengthened by the system of representative government for which the Constitution provides.” Thus the Australian compact is one focused, primarily, on the Australian Crown and its Government delivering security - and not liberty - to this Australian people. Regardless of whether the Crown should have more or less power by statute made under the Australian Constitution's context, the Crown itself endures and contains by necessity all the royal prerogatives necessary to secure its realm, from making war to making peace, to resisting incursions from afar. The contrast with some republican settlement, with a government constituted by limitations on its powers, could not be starker.

[2] Australia has no First Amendment: For good or ill, Australia has no constitutionally entrenched freedom of speech and freedom of the press. Australia has never had a Pentagon Papers case. The closest approximation to the issue arising was the 1980 Defence Papers’ case, concerning leaks from the Government in respect of Australia foreign relations in respect, inter alia, of the Soviet threat, the Shah of Iran, and the East Timor crisis, in which the High Court found for the Government, albeit on the lowly ground of infringement of copyright. Even so, as Justice Mason noted, in making injunctions against publication: “If, however, it appears that disclosure will be inimical to the public interest because national security, relations with foreign countries or the ordinary business of government will be prejudiced, disclosure will be restrained”. While Justice Mason believed that governmental embarrassment was insufficient a reason to enjoin publication, there is no Australian authority that any materials touching on military operations would not be prima facie barred from disclosure and publication. For those pushing an American-style First Amendment, it should be noted that the United States Government, especially under the liberal Obama presidency and even given the First Amendment, has always conducted vigorous leak probes and prosecutions of leakers (eg Daniel Ellsberg), which has in itself raised issues about press freedoms. It is very unlikely that mere changes in the law per se will change anything about the weighing up of the interests of the Government and of the media. Indeed, the American experience seems to be that little changes except battles over which ideological team’s judges sit on what courts, which is a fate I would reject for Australia and our courts.

[3] The Government has its rights, too: The Australian Government has not just a legal duty but a moral obligation to protect its national security information at all levels of security classification. The leaking of any information that compromises not just the security of the nation but also the personal security of the Government’s personnel – uniformed or civilian – is a grave danger to the Australian body politic. In terms of a “chilling effect”, I can think of nothing more deterring to those who go in harm’s way on Australia’s behalf than to have the Government's information on them and their service, especially in the realm of military operations, find its way via 'leaks' to the media, however responsible and ethical, and there be no effort by the Government to retrieve this national security material and secure it. Similarly, Australia has a very close and very deep military alliance with the United States, the United Kingdom, Canada, and other allies, and Australia shares military materials and intelligence - and Australia has shared with it military materials and intelligence - of the gravest important. Any inability of Australia to safeguard its military and intelligence materials, and retrieve them if stolen or 'leaked', prejudices not just Australia's own national security but the allied security and diplomatic relationships that the Australian Government has built up and upon for over a century. The Government’s interests and actions, which may ultimately require the purging of any storage devices or computer servers on which the material may have been stored, is, in the circumstances, a reasonable and proportionate response to the risks posed by a national security compromise of this scale.

At the root of much of this and other debates, is a fundamental misunderstanding as to how Australia is to be governed. Australia is, simply, not constituted as a democracy. Instead, constitutionally, Australia is a monarchical, constitutional, and federal nation-state, with democratic forms – but at all times within a territorial not democratic constitution.

As noted above, a key driver of the Australian union and its resulting Constitution was and is to, literally, constitute an Australian nation-state that could defend itself and perpetuate its nationhood. There were few warm American or continental style flourishes and declarations as to the ‘rights of man’ but, rather, the cold reality of an enormous Australian task to hold so large a continental nation together, come what may. The Australian intent was security not liberty.

The Australian Constitution thus vests the executive power in the Crown, ie a government vested in the Monarch, albeit a power exercised by the Governor-General on the advice of the Ministers of the day. That Governor-General also exercises the command-in-chief of the armed forces. The ministers of the Crown are drawn from the membership of the bicameral Parliament: a House of Representatives containing Members of Parliament elected by the people in 151 separate local electorates across Australia, as well as a Senate elected at large by the people of each State to represent them in the Senate as a House of Review. There is no national vote, at all. The upshot was a national government made responsible to an elected Parliament of local and State representatives. You can read more on Australia’s federal system here.

I mention this as the design of the Australian constitutional system is for a strong executive government, that can secure Australia’s interests, but which is also responsible to the Parliament. Much of what is being asked for, now, consciously or otherwise, is for the Government to be made accountable to the media for the perceived excesses or errors of war or national security activities. Our system is, instead, intended for that accounting to occur in the context of the Parliament. To be sure, the media’s role and duty is to inform and scrutinise the Parliament. But it is the Parliament’s duty to make laws that enable it to properly scrutinise and demand accounting from the Government of the day, especially in relation to its wartime and national security activities. And if a law is overly broad and oppressive, then it is for an active citizenry to pressure their representatives in the Parliament to make new laws and/or amend old ones.

We are not made secure – indeed we are made much weaker – by promoting a culture of leaking (either by any official toleration or media encouragement). This is encouraging the commission of crimes and, also, encouraging the risk that national security personnel, as well as national security information, will have their safety and privacy endangered. The Government has the duty to account to the Parliament – and it also has the duty to safeguard the lives and interests of those Australians it sends in harm’s way.

Ultimately, it is unlikely that this current episode will change anyone’s minds, sadly. The media, no doubt, has legitimate grievances as to the opaque nature of governmental activities. At the same time, heads of the armed forces and security services chiefs do play a much more public role than they did pre-2001 and have shown a willingness to explain their roles to an interested media and public. In a time of crisis, the Australian people have to be able to both trust their Government and trust their media’s reporting of what the Government and its armed forces and security agencies are doing. A more measured and open dialogue is probably the best answer, long term, and an acceptance that while the Government will not always get everything right, we are also not in some authoritarian era, either. Indeed, the best means of improvement lies with the tools that our Constitution has always provided: the power of the Parliament to hold the Government to account and the power of the Parliament to make new laws and to amend old laws.

One can only hope that a more open and transparent discussion will lead to fewer outbreaks of ridiculous hyperbole and an acceptance that the Government, too, has its legitimate interests. Australians have had 118 years of nationhood, persevering through wars and depressions, times of plenty and times of hardship, and our national endurance will continue to demand an energetic government that can both protect our constitution and free society, and secure our nation and her people.